Title IX and Athletics

Title IX of the Education Amendments of 1972 prohibits public and private educational institutions that receive federal funds from discriminating due to gender in any aspect of their operations. The statute, which explicitly prohibits quotas, is coextensive with the prohibitions against gender discrimination provided by the Constitution's Equal Protection Clause. While there is no mention of intercollegiate or inter-scholastic athletics in the actual statute, the implementing regulations make it clear that athletics is covered by Title IX. The Office for Civil Rights (OCR) of the U.S. Department of Education is the agency charged with the enforcement of Title IX. Under the OCR's interpretation, which has been universally endorsed by the federal appellate courts, an institution must do one of three things to comply with Title IX in the context of athletics participation.

First, each gender's representation in varsity athletics must be substantially proportionate to its representation in the student body. The fact that the OCR expects a gender's representation among athletes to be “substantially proportionate” to that gender's representation in a student body necessarily begs the question of what is meant by “substantially proportionate.” In 1996, the OCR clarified that athletic opportunities are

In plain English, the OCR first reviews how many additional participation opportunities must be offered to the underrepresented gender in order to achieve perfect proportionality. If this number is sufficient to field a viable team, then an institution is not considered substantially proportionate and must add a team. If it is not sufficient to field a viable team, nothing more is required.

To illustrate how the OCR test works, suppose a university is 55% female but offers 700 athletic participation opportunities. Men have 385 athletic participation opportunities, while women have 315 [Page 835]participation opportunities. This means women represent 45% of the athletes (315 divided by 700) though they represent 55% of full-time undergraduates. The first step is to consider how many opportunities must be added for women to achieve perfect proportionality of 55%. If male participation remains constant, which is the assumption employed by the OCR, the university must add 156 participation opportunities for women. If a university did so, it would have 471 female opportunities (315 current + 156 additional) and 385 male (all current). The second step is to address whether the number of new participation opportunities required, 156 in this example, is sufficient to field a viable team. Obviously, it is sufficient. In fact, the university could field seven or eight new women's teams with 156 additional opportunities.

Although the above example is purely hypothetical, the actual practice of the OCR yields similar results. In a letter dated August 24, 2000, OCR advised the University of Wisconsin that based on its deviation of 2.89 percentage points (involving an enrollment of women of 52.96% compared with their intercollegiate athletic participation of 50.07%), it failed to comply with its commitment in a plan submitted to OCR to meet the first prong of the three-part test. In this letter, OCR stated the deviation represented as many as 46 participation opportunities for women, which would be sufficient to sustain the addition of a viable women's team. In short, if one gender is 50% of the student body, its representation among varsity athletes must approximate 50%.

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